If You Consent To Sex Under False Pretenses, Is It Rape?

An interesting question courtesy of Volokh Conspiracy: what constitutes rape?

First, some background: a controversial case last year in Massachusetts involved a woman who charged her boyfriend's brother with raping her.

She was living with her boyfriend, Duane Suliveres, in the basement of his father's home, reports the Boston Globe. Duane's brother, Alvin, also lived in the house. One morning, when Duane was working a graveyard shift, the woman says she awoke at 3 a.m. to a man walking into her room. It was dark, she couldn't make out who the person was, but naturally assumed it was her boyfriend. She then asked, "Duane, why are you home so early?" No response. The man then climbed into bed with her, took off her clothes and had sex with her. Afterward, the man got up to leave and, once he opened the door, she realized it was Alvin, not Duane.

So, was this rape? The original trial ended in a hung jury in 2006 and then went to the state Supreme Judicial Court, which ruled Thursday that the rape charges should have been dismissed because Massachusetts law clearly defines rape as an act of force. The court may have closely followed the letter of the law, but rape victim advocates are outraged. "The message that the court sends today is ... that a man's ability to obtain sex through fraud with regard to who he is is more important than a woman's fundamental right to control her own body," said Wendy J. Murphy, a professor at the New England School of Law. "It is impossible -- as a matter of fact and law -- to consent to sex with the wrong person."

In response, a state legislature has proposed the following statute be implemented in Massachusetts (emphasis mine):

Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment, or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years.

Volokh argues, however, that this law goes too far in trying to correct the problem of how rape is defined:

Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.

So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)

The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)

Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.

And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)

Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).

In a separate post, he also explains why, conceptually, engaging in fraud to obtain sex should be governed differently than fraud to obtain property by quoting Askew v. Askew, 22 Cal. App. 4th 942 (1994), in which the decision states:

Words of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law fraud and deceit. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden, particularly where the statements were made prior to marriage and the marriage lasted more than 13 years. “The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason.” Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries....